The opinion of the court was delivered by
Horton, C. J.:
The following is a general statement of the facts in this case: In August and September 1874, the plaintiffs in error, who were constables of Shawnee county, held several executions issued by justices of the peace of said county on judgments against the Topeka Rolling-Mill Company, a corporation doing business in North Topeka. The executions amounted in all to $2,508.37; and certain iron, being in possession of the rolling-mill company, the constables levied upon it as the property of this company, to satisfy their executions. The iron was so held by them as such constables when the K. P. Rly. Co., on 23d September 1874, commenced this action in the court below in replevin to recover the possession of the property. The said personal property was described in the petition as follows: “The specific mass of railroad iron, in bars or flats, amounting in weight to about three hundred tons, now stacked in North Topeka, near to and south of the track of K. P. Rly. Co., and about one hundred and fifty yards east of its depot, in North Topeka aforesaid, being all the railroad iron stacked i» such locality.” The railway company claimed to be the owner of the iron, and that the rolling-mill company was only its bailee. The proof tended to show that the railway company, having a large quantity of old and worn-out railroad iron which it wished to utilize, entered into a contract with the rolling-mill company by which the latter company would re-roll into new bars or rails the old iron delivered to it, and put in a certain amount of new iron, called “head-iron,” to form the head, or top of the rails. The course of business was to weigh in the old iron, cut it up, heat several pieces together to a welding'heat, roll it into flat pieces, add the new *107iron, heat it again (several pieces together) to a welding heat, roll it into rails, and weigh out to the railway company the number of tons of new iron weighed in of the old, charging so much per ton for all the new rails so made. The defendant in error made several consignments of old iron to the rolling-mill company during the summer, and received back a large quantity of new rails; but the evidence does not show how many tons of old iron the defendant in error consigned to, nor how many tons of new rails it had received from, the rolling-mill company. Nearly all the iron replevied in this action had gone through only one of the heating processes, and was in flat pieces called ^ flats.” There were also about twenty-five tons of new rails or bars in the mass in dispute. Verdict and judgment in favor of the railway company.
The first question is, as'to the character of the transaction between the railway and rolling-mill companies. Counsel for plaintiffs in error contends that it was what the civilians would call a mutuum, rather than a regular bailment; that the iron in the possession of the rolling-mill company was what the Scotch and French lawyers denominate a fungible; that by the delivery of the iron by the railway company to the rolling-mill company, the title passed to the latter; that the obligation to deliver new rails to the railway company on payment or tender of the price of re-rolling became á debt, and therefore, that the personal property levied upon was liable to be sold to pay the judgments against such rolling-mill company. Said counsel assigns as error the holding of the court below, that the transaction between the companies was a bailment under that subdivision designated by Sir William Jones in his work on bailments as loeatio opens faeiendi, and classified by Pothier, in his definition of contract of hire, as a regular contract of hire, that is, that contract of- hire where the specific thing which is let to hire is to be returned. We think that the learned counsel misconceives the law as applicable to the facts discussed, from an attempt to marshal the case nolens volens, within the definition of the mutuum of the Romans, because it differs slightly from the common bail*108ment classified as locatio operis faoiendi. While it is true, that the transaction between the two companies varies from the terms of either a regular or an irregular contract for hire, yet if any technical term is to be applied to it, it must be placed in the category of bailments denominated looatio operis faoiendi, rather than that of the mutuum,,, or fungible, of the law-writers. In other words, by the rules of the common law and the decisions of this country, the transaction was a regular contract of hire, in contradistinction from an irregular contract of hire, if the railway company furnished the chief or principal part of the material of the new rails, and if such was the case, the proprietary interest in the iron let was not changed, but remained in the latter, viz., the Kansas Pacific Railway Co. This conclusion is based on the rule that, as the law does not favor tenancy in common in such transactions, and as the addition of inconsiderable accessorial material to the chief or principal material in the manufacture of an article may be deemed an actual sale by delivery of such additional material to the original owner, such original owner, so far from losing his general property in the thing thus placed in the hands of another person for manufacture, acquires that right to whatever minor accessorial additions are made in bringing it to its new and improved form. In Slaughter v. Green, 1 Rand. 3" court="Va." date_filed="1821-12-15" href="https://app.midpage.ai/document/slaughter-v-green-6801086?utm_source=webapp" opinion_id="6801086">1 Rand. 3, it was held that where wheat was delivered at a mill to be ground upon an agreement that the miller should return to the farmer a given quantity of flour for so many bushels of wheat, the miller was a bailee, and not a purchaser. In Foster v. Pettibone, 7 N.Y. 433" court="NY" date_filed="1852-12-05" href="https://app.midpage.ai/document/foster-v--pettibone-3579935?utm_source=webapp" opinion_id="3579935">7 N. Y. 433, it was held that where a contract is made with the manufacturer to deliver him raw materials to be returned manufactured, the contract is one of bailment, and not of sale, and the title to the article when manufactured remains in the original owner, In Pierce v. Schenck, 3 Hill, 28, it was- held, if logs be delivered at a saw-mill, under a contract with the miller that he shall saw them into boards within a specified time, and that each party should have one-half of the boards, the transaction inures as a bailment merely, and the bailor retains-*109bis general property in the logs till all are manufactured pursuant to the contract; and it was further held in the case, that where the miller, after sawing a part of the logs into boards within the time, failed to perform as to the rest, and converted both the boards and the logs to his own use, the bailor might recover in trover for the whole, and that the miller was not entitled to any deduction on account of what had been actually sawed. In Wilson v. Nason, 4 N. Y. 156, it was held that when one who has possession of the owner’s wheat mixes it with other wheat of the same description and quality, whether his own, or belonging to third persons, without the consent of the owner, the latter does not lose the title to his wheat. He may call for a division, or when the other parties have received from the mass their several quantities, he may claim and recover the residue as his separate parcel. Identification of the very grains of wheat is not necessary. In Pulcifer v. Page, 32 Me. 404" court="Me." date_filed="1851-04-15" href="https://app.midpage.ai/document/pulcifer-v-page-4928843?utm_source=webapp" opinion_id="4928843">32 Me. 404, it was held that where a chain was made of broken links belonging to different parties, that a right of property by accession occurs when materials belonging to several persons are united by labor into a single article. The ownership of an article so formed is in the party, if such there be, to whom the principal part of the material belonged. In Merritt v. Johnson, 7 Johns. 472, it was held that when the materials of John are united with the materials of Eichard by the labor of Eichard, who furnished the principal materials, and those of John are only accessory, the right of property in the whole belongs to Eichard by right of accession. So if A. deliver to B. some cotton, yarn on a contract to manufacture the same into cotton plaids, and B. was to find the filling, and A. agreed with B. to have the particular yarn with the fillings to be found by B. made into plaids on joint account, and the plaids when woven were to be divided according to their respective interests in the value of the materials, and the plaids, before the division, had been burnt by an accidental fire, the loss would have been mutual, each losing the materials furnished by himself. Story on Bail., § 420. Again, where materials are furnished to a work*110man to manufacture into some article, the case is still treated as a mere bailment, although the workman may add some accessorial materials or ornaments. Thus, if A. sends cloth to a tailor to be made into a garment, and the tailor furnishes buttons and twist to complete it, it is a mere case of looatio operis faoiendi. Story on Bail., § 423; Gregory v. Stryker, 2 Denio, 629.
In the case at bar, old rails, as the material, were furnished by the railway company to the rolling-mill company to manufacture into new rails; and in view of the above authorities, and the conclusion we have reached, it was important on the trial to show how much old and how much new iron entered into the new rails. The court below seems to have assumed that the accessorial material added by the rolling-mill company in the way of new iron, which formed the top of the rail, was the lesser part of the iron used in the manufacture of the rails; and such, perhaps, was the case. But the district court committed error in assuming such to be the fact, and in refusing to permit the plaintiffs in error to prove the materials of the new rails.
While the witness Coldren was upon the stand, after having testified concerning the process undergone by the Kansas Pacific railway iron in being made into new rails, and that he was familiar with the details of the business of the manufacture of the new rails, he was asked on cross-examination: “How much new iron did you put in with the old, in the process of manufacturing these old rails of the Kansas Pacific Railway Company into new ones?” The defendant in error objected to the question, and the court refused to allow the question to be asked, or answered. The question was pertinent and important. Its rejection by the court was substantial error, and prejudicial to the rights of the plaintiff in error. It is probable, if the witness, who was the president of the rolling-mill company, had answered the interrogatory, it would have been fully established that the material furnished by the railway company formed the chief portion of the new rails; but this is only a presumption from other *111evidence in the case; and as the inquiry was a legitimate one, and as the jurors were the parties to be informed of the various amounts of metal furnished by the two companies in the manufacture of the rails, the case must be reversed. The court had no right to judicially determine the amount of new material added to make the top of the rails, nor to deprive the plaintiffs in error from proving how much was used therefor. Again, it was clearly incumbent on the part of the defendant in error to show by the proof, that, as to the twenty-five tons of new rails which were replevied, the material thereof was principally the property of the Kansas Pacific Railway Company; and the refusal of the court to permit the president of the rolling-mill company to be cross-examined on the subject, at a time the matter was a proper subject of examination, left the question of the amount of material furnished by each company in the manufacture of the new rails to be decided by the jury upon other testimony, and this was of an indirect and indefinite character. The best evidence upon this point was held inadmissible.
The judgment will be reversed, and a new trial awarded.
All the Justices concurring.